Facebook is the largest social network in the world. The company was recently in the news when it warned employers not to demand the Facebook passwords of prospective employees. Apparently, many employers are now attempting to get this information before hiring individuals. The company claimed that it’s an invasion of privacy that exposes companies to legal liability. As an Alameda personal injury lawyer, I am starting to see that insurance companies are also trying to get this information to defend claims in auto accidents, slip and fall, and other personal injury claims.

The legal question is whether a person who files a personal injury lawsuit waives his or her entire right of privacy as to their Facebook and other social network postings. There have been no California appellate court decisions directly on point, however, a state court decision out of Pennsylvania has considered the issue.

In the Pennsylvania case, Largent v Reed, the plaintiff filed a personal injury lawsuit in which she claimed severe personal injuries and emotional distress caused by an auto accident. The lawyers for the defendant claimed that the person’s Facebook page had several photographs of her enjoying her life and going to the gym. The Pennsylvania court ruled that the person’s Facebook page was not protected by her right of privacy and permitted the discovery.

The Pennsylvania case is not binding on California Courts however. And there is good reason to believe that a California Court might rule the opposite way and protect the plaintiff’s right of privacy.

California courts have a long history of protecting individual’s rights of privacy and rights of association. It seems to me that the Facebook and social media environment in general involves not just the individuals right of privacy but the right of others who are Facebook friends. In other words, the rights of all of the people you associate with on Facebook are also affected if the Courts permit disclosure of this type information.

The California Supreme court over thirty years ago recognized that a person’s right to privacy and his association rights are not necessarily waived just because a personal injury lawsuit is filed. The case was Britt v Superior Court. There, the plaintiff’s sued a local airport for damages for diminution of value to their property, personal injuries, and emotional distress related to the use of the airport. In their defense, the airport sought detailed information about the plaintiffs’ activities and affiliations with certain organizations. The Court held that this information was protected by their right of associational privacy. In denying the defendant permission to obtain this type of information, the court stressed that compelled disclosure of an individual’s private associational affiliations and activities can pose one of the most serious threats to the free exercise of this constitutionally endowed right.

A cogent argument can be made that discovery of Facebook information also infringes on this constitutionally protected right to freely associate with others. After all, the Facebook pages are not open to all and have privacy settings all for the specific purpose of limiting who you are sharing information with. Under the reasoning of Britt v Superior Court, the individual should have the right to keep this information private.

Of course, no California court has made a binding decision on the matter. I would suspect that even if an appellate court were to take on this issue, that it would ultimately end up before our California Supreme Court again. As a matter of practicality, however, I would strongly suggest, that individuals be careful about what they put on Facebook or other social media sites. While a strong argument can be made that such postings are protected private materials, courts, such as that in Pennsylvania may see it otherwise.

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